A three-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld the Mine Safety and Health Administration’s (MSHA) regulation which is designed to better protect coal miners from developing black lung disease. The MSHA regulation was issued in April 2014, and shortly thereafter, the National Mining Association, Murray Energy, and others filed a lawsuit against it. The judges' opinion was published yesterday. (Thanks to Evan B. Smith at Devil in the Dust for alerting me to the decision.)
The industry asked the Court of Appeals to review a long list of legal arguments against the MSHA rule. Generally, the industry asserted that MSHA failed to use “the best available evidence” and to demonstrate that the rule is technologically and economically feasible. The judges rejected all of the industry’s complaints and upheld MSHA’s rule in total.
Here’s some of what Judge Kenneth F. Ripple wrote in the court’s opinion:
“We do not sit in judgment of what evidence is indeed ‘best’ or whether the proposed rule is ‘feasible’ under the statute. We ask only whether MSHA’s conclusions on these matters pass muster under the Administrative Procedure Act."
..."To do otherwise puts this court in the unenviable—and legally untenable—position of making for itself judgments entrusted by Congress to MSHA. Finally, the Mine Act evinces a clear bias in favor of miner health and safety. The duty to use the best evidence and to consider feasibility are appropriately viewed through this lens and cannot be wielded as counterweight to MSHA’s overarching role to protect the life and health of workers in the mining industry. “
With respect to the mining industry’s arguments that the MSHA rule is not feasible, the Court said:
“…we call to mind the counsel of the Supreme Court when it interpreted a nearly identical provision of the OSH Act. …'[F]easible means capable of being done, executed, or effected.’ …A feasibility determination decidedly does not require the agency to engage in a cost-benefit analysis. …Our colleagues in the District of Columbia Circuit similarly have said, [g]iven that feasibility determinations involve complex judgments about science and technology, our standard of review is deferential: the agency is not obliged to provide detailed solutions to every engineering problem, but only to give plausible reasons for its belief that the industry will be able to solve those problems in the time remaining.”
MSHA's regulation requires the industry to use a new method for measuring the concentrations of respirable coal dust in the mine environment. The court restated the industry’s litany of complaints about the new device which is called the continuous personal dust monitor (CPDM). Judge Ripple wrote:
“They contend that MSHA ignored record evidence of the device’s high malfunction rate, failed to consider that its measurement methodology does not protect against inaccuracies due to oversized particles which are not respirable, failed to consider that it is not capable of silica measurement, used inaccurate assumptions to calculate its availability timeline to the industry, and reached incorrect conclusions about the ability of miners to wear the device without impeding their work.”
“Each of these objections was raised before MSHA during the comment period of the rulemaking process, and MSHA responded to them on the merits in the preamble of the final rule. As we have noted earlier, in our review, we do not reweigh the evidence before MSHA; we simply assess whether MSHA’s position, in light of the evidence before it, meets a threshold of reason such that it cannot be deemed is not to substitute its judgment for that of the agency.”
Tick that one off as another losing argument for the mining industry.
The court’s opinion is 83 pages. I won’t recap all of it, but here’s one part that especially put a smile on my face.
In Murray Energy’s brief, the company asserts that coal workers’ pneumoconiosis “…is declining under the current system, i.e., the system is working.”
The Court goes on:
“…even if true, is irrelevant where [coal workers' pneumoconiosis] CWP incidence has not been reduced to zero and MSHA has not completely fulfilled its mission to “protect the health . . . of the Nation’s coal or other miners.”
"...the Mine Act directs the agency to 'prevent,' not merely reduce the incidence of, 'occupational diseases originating in . . . mines.'"
The argument that the incidence of an occupational disease has declined, and therefore a regulation is not necessary, is one we've been hearing a lot of lately. OSHA is engaged currently in a rulemaking to address respirable silica dust. Opponents of the regulation trot out a graph showing a decline in silicosis deaths. They fail to mention the problems with that data (e.g., silicosis is often not listed on a death certificate) or that the rule will not only prevent new cases of silicosis and other respiratory diseases, but also lung cancer and fatal renal diseases.
For MSHA's new regulation on respirable coal dust, the industry was also not successful in obtaining a court-ordered "stay" to halt implementation of it. Initial provisions of the rule took effect in August 2014, others have been phased in, and the remaining ones will become effective on February 1 and August 1 of this year.
The mining industry has waged a battle for 20 years against this rule (and previous MSHA regulatory efforts) to better protect coal miners from developing black lung disease. The US Court of Appeals' decision finally puts the matter to rest.